Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson would not have allowed Trump to fire Slaughter in the meantime.
“Under existing law, what Congress said goes—as this Court unanimously decided nearly a century ago,” Kagan wrote, noting the Supreme Court rejected a presidential claim “identical to the one made in this case” when it decided Humphrey’s Executor v. United States in 1935.
“Yet the majority, stay order by stay order, has handed full control of all those agencies to the President,” she wrote. “He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all.”
This year, the Supreme Court’s majority has also allowed Trump to fire members of the Consumer Product Safety Commission (CPSC), National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB).
In July, the Supreme Court suggested a lower court judge should have known not to block the president’s removal of CPSC members in light of a prior emergency docket decision allowing Trump to fire other officials. Though the Supreme Court’s temporary orders are “not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases,” the court held at the time.
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” Kagan wrote in the dissent joined by Sotomayor and Jackson. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”
